Citation Nr: 0126748
Decision Date: 11/27/01 Archive Date: 12/03/01
DOCKET NO. 97-17 219A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for a disability
manifested by pain and numbness of the lower extremities as a
result of claimed service trauma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
D. Jeffers, Counsel
INTRODUCTION
The veteran served on active duty from November 1966 to
November 1969, and from May 1975 to March 1976.
This case comes to the Board of Veterans' Appeals (Board)
from an April 1997 RO rating decision which reopened and
denied a claim for service connection for PTSD, and denied a
claim for service connection for a disability manifested by
pain and numbness of the lower extremities as a result of
claimed service trauma. The veteran had an RO hearing in
August 1997, and he canceled a Board hearing scheduled for
May 2001.
The Board notes that a claim for service connection for PTSD
was previously denied in an April 1987 Board decision, and
evidence then available did not include a diagnosis of the
condition nor was there verification of service stressors.
The Board agrees with the RO that new and material evidence
has been submitted since the April 1987 Board decision,
including medical evidence of a diagnosis of PTSD and
additional information on claimed service stressors, and thus
the claim has been reopened and is to be reviewed on a de
novo basis. 38 U.S.C.A. § 5108, 7104 (West 1991); 38 C.F.R.
§ 3.156 (2001); Manio v. Derwinski, 1 Vet.App. 140 (1991).
An unappealed September 1981 RO decision denied a claim for
service connection for bilateral leg numbness secondary to
Agent Orange exposure. The present claim is for service
connection for a disability manifested by pain and numbness
of the lower extremities as a result of claimed service
trauma. This is a different claim than the earlier final
Agent Orange claim, and the new claim is to be adjudicated
without regard to finality. See Samuels v. West, 11 Vet.
App. 433, 436 (1998).
FINDINGS OF FACT
1. During service the veteran did not engage in combat with
the enemy, and there is no credible supporting evidence to
show service stressors which might lead to PTSD.
2. Complaints of pain and numbness of the lower extremities
began many years after service and were not caused by claimed
service trauma; trauma to the lower extremities during
service is not shown.
CONCLUSIONS OF LAW
1. PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 3.303, 3.304 (2001).
2. A disability manifested by pain and numbness of the lower
extremities as a result of claimed service trauma was not
incurred or aggravated during active service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303
(2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Background
Service medical records include a December 1965 pre-service
letter from a private doctor who noted that in 1959, a few
days after receiving a polio vaccination, the veteran was
seen for an unsteady gait, lack of coordination, visual
problems, etc., which were felt to be due to allergic
encephalitis from the vaccination. The veteran reportedly
had recurrent episodes of neurological deficits in the early
1960s, and possible multiple sclerosis was considered. In
his December 1965 letter, the doctor noted the veteran was
currently neurologically intact and should not be
disqualified from military service, although there was still
a possibility he had disseminated sclerosis.
The veteran had honorable active duty in the Army from
November 1966 to November 1969. His service personnel
records show that he served in the Republic of Vietnam from
February 1968 to February 1969. During this tour of duty, he
was assigned to various field depots as a clerk typist and an
armorer unit supply specialist. He received no combat-
related awards or decorations. Service medical records
pertaining to this period of military service do not show a
mental disorder or bilateral lower extremity disorder. The
veteran had normal psychiatric and lower extremity
evaluations on the separation examination in September 1969.
The veteran also served on active duty in the Army from May
1975 to March 1976, and such service ended with a discharge
under honorable conditions by reason of fraudulent entry into
service (concealment of civil conviction). He had no
overseas service during this period. Service medical records
show that in January 1976 the veteran was seen for mental
health counseling due to domestic problems. A February 1976
mental examination for administrative discharge purposes was
negative for a mental disorder. A discharge examination in
February 1976 noted the lower extremities and psychiatric
system were normal.
A September 1981 RO decision denied service connection for
bilateral leg numbness due to Agent Orange exposure. It was
noted that the veteran's service medical records were
negative for a disorder of the lower extremities.
In conjunction with a claim for non-service-connected
pension, the veteran was afforded VA general medical and
mental disorders examination in November 1984.
The November 1984 VA general medical examination report
indicates, in pertinent part, that the veteran reported that
his lower extremity weakness began following his jumping out
of a 44-foot high guard tower over an ammunition dump in
Vietnam. He said he landed on the pavement below, on his
feet. He said the ammo dump had been set on fire and was
burning briskly, so he had to jump off of the tower, being
the only person there. He said he then had to walk 1 1/2 miles
to the guard shack, and he then had weakness and soreness in
his legs. Current physical examination of the legs revealed
no pathology except for slight tenderness in the calves which
was related to trauma by history. X-rays of the legs were
normal. The veteran said he had always been somewhat nervous
but such was made worse by his Vietnam experiences.
At the November 1984 VA psychiatric examination, the veteran
reported that during service he was not engaged in personal
combat although enemy planes dropped bombs on the periphery
of his installation. He related an incident where he had to
jump out of a tower, about 40 feet, after an ammunition dump
caught fire due to enemy bombs. Mental status evaluation of
the veteran revealed no Axis I diagnosis, and the Axis II
diagnosis was avoidant personality disorder.
VA treatment records from 1986 show treatment on occasion for
complaints of leg cramps.
A March 1986 RO rating decision denied service connection for
PTSD. The veteran appealed.
The veteran then presented testimony at an RO hearing held in
August 1986. He indicated that in Vietnam he was not
involved in combat but was in an area where bombs went off.
He stated that one night the ammunition dump went off; he
described it as "like looking a wall of fire in the face."
He also noted that he drove a truck, and that on one occasion
a bridge blew up immediately after he crossed it. He
testified that he had nightmares and other symptoms from his
Vietnam experiences.
The Board denied service connection for PTSD in an April 1987
decision. There was no diagnosis of PTSD and a stressor had
not been shown.
In conjunction with the present appeal, the veteran submitted
copies of 1997 medical records from Gregory C. Marone, a
licensed psychologist, and the Peace River Development Center
for Personal Development, Inc. The records reflect diagnoses
of PTSD based on the veteran's alleged negative experiences
in Vietnam. A 1997 psychological evaluation by Dr. Marone,
prepared for purposes of Social Security Administration (SSA)
disability benefits, indicates that the veteran reported a
combat-related incident in which he jumped from a tower when
an ordnance depot exploded. He said he was charged with
abandoning his post, but a subsequent hearing absolved him of
such charge.
A copy of a July 1997 letter from the SSA indicates that the
veteran was granted disability benefits.
The veteran and his spouse presented testimony at a personal
hearing held by the RO in August 1997. It was stated that
Dr. Marone's report was the primary record considered by the
SSA in awarding disability benefits. The veteran indicated
that he was a supply specialist while serving in Vietnam. He
said this duty assignment included receiving requisitions,
processing them, and sometimes making deliveries, as well as
being assigned to guard duty. He related that while serving
on guard duty he was up on a 20-25 foot tower, which was over
an ammunition dump; the ammunition dump caught on fire
causing him to jump off, while carrying a back pack and full
gear; and when he looked back the tower was not there and
there was fire coming out at him on both sides. He said that
after the fall he did not receive any treatment until he got
back to the United States, where he was given Darvon. The
veteran did not recall whether any of his fellow soldiers
were injured or killed during the event. He also said that
the incident occurred in December 1968, while stationed in
Qui Nhon, Vietnam. The veteran's spouse described how the
veteran had bad nightmares and could not seem to forget
Vietnam.
In September 1997, the VA Medical Center (VAMC) in
Chillicothe, Ohio indicated that it had no records of
treatment for the veteran from 1972 and 1976.
Treatment records obtained from the VAMC in Tampa, Florida
reflect treatment on occasion for pain and numbness of the
lower extremities between 1984 and 1997. Generally it was
noted the symptoms were of unknown etiology. In 1997 the
veteran claimed that his lower extremity pain started after
jumping off of a burning tower in Vietnam.
The RO attempted to verify the veteran's alleged service
stressors through the service department. In July 1998, the
U.S. Armed Services Center for Research of Unit Records
(USASCRUR) (formerly U. S. Army & Joint Services
Environmental Support Group (ESG)) provided the RO with
information concerning the veteran's claimed stressors for
PTSD. The USASCRUR provided a copy of the unit history
submitted by the 563rd Supply & Service Battalion, copies of
Operation Reports - Lessons Learned (OR-LLs) submitted by the
U.S. Army Support Command, Qui Nhon (USAC-QN), the higher
headquarters of the of the 563rd Supply & Service Battalion
and the 58th Fld. Depot (58th Fld Dep), as well as an extract
of an OR-LL submitted by the 1st Logistical Command (1st Log
Cmd), the higher headquarters of the U.S. Army Depot, Qui
Nhon (USAD-QN). These records confirm that hostile action in
the area involved mortar and rocket engagements, ground
attacks against installations, sabotage of equipment and
facilities, interdictions of lines of communications and
convoy ambushes. However, it was reported that although
there were many attempts, no U.S. Ammunition Supply Points
(ASP) were hit during the veteran's period of service.
Analysis
Through correspondence, the rating decision, the statement of
the case, and the supplemental statement of the case, the
veteran has been informed of the evidence necessary to
substantiate his claims. Pertinent medical records have been
obtained, and an attempt has been made to verify service
stressors. Under the facts presented, a VA examination is
not necessary to decide the claims. The Board finds that the
notice and duty to assist provisions of the law have been
satisfied. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66
Fed.Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. § 3.159).
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303.
Service connection for PTSD requires medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed in-service stressor
actually occurred, and a link, established by medical
evidence between current symptomatology and the claimed in-
service stressor. If the claimed stressor is related to
combat, service department evidence that the veteran engaged
in combat or that the veteran was awarded the Purple Heart,
Combat Infantryman Badge, or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor.
38 C.F.R. § 3.304(f) (1998). This regulation was revised in
June 1999, effective from March 1997, and the revised version
provides that service connection for PTSD requires medical
evidence diagnosing the condition in accordance with
38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a
link, established by medical evidence, between current
symptoms and an in-service stressor; and credible supporting
evidence that the claimed in-service stressor occurred. If
the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to
the contrary, and provided the claimed stressor is consistent
with the circumstances, conditions, or hardships of the
veteran's service, the veteran's lay testimony alone may
establish the occurrence of the claimed in-service stressor.
38 C.F.R. § 3.304(f) (2001).
The veteran's service records show he did not engage in
combat, and the veteran appears to acknowledge this in his
statements. Based on the evidence, the Board finds that the
veteran did not engage in combat, and thus the liberalizing
evidentiary standards set forth in 38 U.S.C.A. § 1154(b) and
the corresponding regulation, 38 C.F.R. § 3.304(d), are not
for application in this case.
It is essentially contended that because various medical
providers have related the veteran's diagnosis of PTSD and
his bilateral lower extremity symptoms to his alleged in-
service trauma, jumping off a guard tower over an ammunition
dump that had been bombed and set on fire by the enemy,
service connection is warranted. However, the veteran did
not engage in combat, and the USACRUR has indicated that the
alleged incident of the exploding ammunition dump did not
occur.
As to the claim for service connection for PTSD, one
requirement of 38 C.F.R. § 3.304(f) is credible supporting
evidence that a stressor leading to PTSD occurred in service.
Since the veteran did not engage in combat with the enemy,
such stressor must be established by service records or other
credible supporting evidence. Fossie v. West, 12 Vet.App. 1
(1998); Cohen v. Brown, 10 Vet.App. 128 (1997); Doran v.
Brown, 6 Vet.App. 283 (1994). As noted, the alleged stressor
in this case is an ammunition dump explosion near a guard
tower the veteran was occupying. However, the USASCRUR
indicates such event did not occur. The veteran has
submitted no other independent evidence to prove the
stressor. As a service stressor has not been established,
service connection may not be granted.
With regard to the claim for service connection for a
disability manifested by pain and numbness of the lower
extremities as a result of claimed service trauma, the Board
notes that no chronic lower extremity disorder is shown in
the service records from the veteran's 1966-1969 service
(which included Vietnam service) and his 1975-1976 service.
The service records also show no trauma to the lower
extemities during active duty, from the unverified jump off a
guard tower or from any other incident. Years after service
the veteran complained of pain and numbness of the lower
extremities. The post-service medical records do not include
a clear diagnosis for the symptoms, and pain alone, without a
diagnosed related disorder, does not constitute a disability
for which service connection may be granted. Sanchez-Benitez
v. West, 13 Vet.App. 282 (1999). Even assuming the veteran
now has a diagnosed disorder manifested by pain and numbness
of the lower extremities, the weight of the credible evidence
shows such began many years after service and was not caused
by any incident of service (including the alleged but
unproven jump from a tower in Vietnam). The disability was
not incurred in or aggravated by service.
The preponderance of the evidence is against the veteran's
claim for service connection for PTSD, and against his claim
for service connection for a disability manifested by pain
and numbness of the lower extremities as a result of claimed
service trauma. Thus the benefit-of-the-doubt rule does not
apply, and the claims must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
ORDER
Service connection for PTSD is denied.
Service connection for a disability manifested by pain and
numbness of the lower extremities as a result of claimed
service trauma is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals